2018 PLP 94 (YLRN)

MUHAMMAD IQBAL MAHAR, J.

Through instant bail application, applicant Muhammad Suhail seeks post arrest bail in Crime No.08 of 2016, offence under sections 462-C, 462-E, 109, 161, P.P.C. read with section 5(2) of PCA Act-II of 1947, registered at Police Station, FIA Circle, Hyderabad. Earlier his bail application has been dismissed by learned trial Court vide order dated 01.8.2016.

2. Relevant facts are that on 29.03.2016 complainant Muhammad Saleem Malik, Inspector FIA, Hyderabad lodged FIR, stating therein that on receipt of information regarding commission of theft of natural gas at Shahbaz CNG Station situated near 132 KV Grid Station, Sehwan Road, Jamshoro by way of its consumption from SSGCL distribution line through one clamp affixed directly, a raid was conducted by FIA team along with SSGCL team at above, mentioned CNG station and theft of Natural Gas through a clamp installed on SSGCL distribution line for use of above mentioned CNG station was detected. SSGCL technical team checked the volume of theft of natural gas and prepared technical report, showing theft of 80524 MMBtu natural gas causing loss of Rs.18,55,58,313.90 approximately in three years to the public exchequer. Technical report dated 29.3.2016 was submitted and FIR was lodged against accused Bashir Ahmed Leghari, Abid Hussain Gaho, owner / proprietor/ beneficiary of Shahbaz CNS -station, their associate Syed Aijaz Shah, Manager Shahbaz CNG station and Syed Shabir Shah, employee of said CNG station. They were found involved in theft of Gas for industrial consumption causing loss of aforesaid amount to the exchequer. Thus accused Abid Hussain Gaho, Bashir Ahmed Laghari, Syed Aijaz Shah, Syed Shabir Shah and others were booked for offence punishable under sections 462-C, 462-E, 109, P.P.C.

3. Learned counsel for the applicant-accused contended that the name of applicant/accused does not appear in FIR, but during investigation, he and co-accused Raza Muhammad were involved in the case; that alleged offence does not fall within prohibitory clause of section 497, Cr.P.C; that co-accused Abid Hussain has been granted bail by this Court. He also contended that the case against applicant/accused is identical to that of co-accused Abid Hussain, who has already been granted bail by this Court, therefore, he is also entitled to grant of bail. In support of his contention learned counsel for the applicant relied upon case of Altaf Hussain v. The State (2007 PCr.LJ 1087), Mumtaz Ali Jalbani v. The State (2012 YLR 2727), Mustafa Ali v. The State (2014 PCr.LJ 1464) and Muhammad Ashraf v. The State (2003 MLD 165).

4. As against above, Mr. M. Aslam Sipio, learned counsel for the complainant submitted that applicant/accused is involved in the offence and as per report prepared by technical team he along with co-accused caused loss of more than eighteen crore rupees to the Government exchequer. He also submitted that case of applicant is identical to that of co-accused Raza Muhammad whose bail application has already been dismissed by this Court vide order dated 29.7.2016, therefore applicant accused is not entitled for concession of bail.

5. Learned Assistant Attorney General of Pakistan adopted the arguments of learned counsel for the complainant and further added that no enmity has been suggested by the applicant for his false implication in the case.

6. I have heard learned counsel for the parties and have gone through the record. I have examined the record which reflects that case of co-accused Abid Hussain Gaho is on different footing than the case of applicant accused as the claim of co-accused Abid Hussain was that he and Bashir Ahmed were owners of the CNG station and subsequently they leased out to co-accused Aijaz Shah on monthly rent through lease agreement dated 06.11.2015 and per lease agreement the lessee was responsible to pay all the bills as he was the beneficiary, therefore he has no concern with the affairs of CNG station, hence the contention of learned counsel for the applicant-accused that case against his client is identical to co-accused Abid Hussain Gaho, has no force. Apart from above bail application of co-accused Aijaz Shah has also been dismissed by this Court. Perusal of record reflects that the case of applicant accused is identical to that of co-accused Raza Muhammad, whose bail plea has been declined by this Court vide order dated 29.7.2016 passed in Cr.B.A. No. 408/2016 and it has been observed that: "I have heard the respective sides and have also gone through the available record carefully. The applicant accused Raza Muhammad insists his release mainly on ground of his being not named in the FIR and that of being not posted at the time of raid. There can be no denial to the well established principle of law that FIR is only meant to bring the law into motion hence mere non mentioning of name in the FIR alone is never sufficient to earn grant of bail. I would insist that there are certain offences involvement wherein cannot be legally ascertained at time of detection of the offence and section 462-C & E P.P.C., without any doubt, shall stand included in such category. Thus non mentioning of the name of the applicant accused ipso facto shall not help him to insist the bail . I would also add that matter of public servant/official is always to be taken rather seriously and would not be taken as that of an ordinary person because the public servant/official is always bound by his duties to prevent the offences and if he from his acts or missions allows happening of the offence, not only commits the offence but breach of his official duties/ obligations. The applicant accused Raza Muhammad prima facie appears to be linked with the offence with which he is charged and has failed to bring his case within meaning of further inquiry hence is not entitled for concession of bail."

7. Co-accused Raza Muhammad was Engineer and the applicant / accused was Clerk in the company and no doubt names of both accused do not transpire in FIR but they have been implicated by PW Zulfiqar Ali Shah, Hasnain Shah and Niaz Ali Chandio in their statements recorded under section 161, Cr.P.C. that they in furtherance of their common intention with co-accused caused loss of more than eighteen crores rupees to the Government exchequer as per report prepared by technical team. The documents filed by learned counsel for the complainant prima facie connect the applicant and co-accused Raza Muhammad with the commission of offence, therefore, rule of consistency is very much applicable hence, the applicant-accused is not entitled to grant of bail. Accordingly, instant bail application being bereft of any merit is hereby dismissed, however learned trial Court is directed to conclude the trial of the case preferably within a period of four months after receipt of this order and report compliance though Additional Registrar of this Court.

8. The facts of case law relied upon by learned counsel for the applicant are totally different from the facts of case in hand. WA/M-83/Sindh Bail refused.